Should An HIV-Positive Body Be Considered a Deadly Weapon?

A case in New York revisits the fear and stigma of the most dangerous era of AIDS.

A woman gets an istant HIV/AIDS test inside a moblile clinic of John Wesley Community Health Institute during a health fair sponsored by World Literacy Crusade and the American Health and Education Clinics at the Church of Scientology community center on June 5, 2013 in Los Angeles, California.

(Photo by Kevork Djansezian/Getty Images)

When Terrance Williams was 21, he met a man in Syracuse, and the two became friends. Some weeks later, they became sexually involved. Williams and this partner—who, in court papers, is referred to only as “the victim”—used protection in their relationship, at first. But one night, Williams’s partner reached for a condom, and Williams removed it from his hand. The two often talked about the dangers of the human immunodeficiency virus (HIV), and Williams’s partner asked him, four times, if it was safe for them to have unprotected sex.  Williams assured him that it was.

That was in the summer of 2010. In December 2009, Williams had been diagnosed as HIV positive. A few months into their relationship, in October 2010, Williams told his partner that he believed might be HIV positive, because, before they had started sleeping together, Williams had had unprotected sex with an infected person. Williams suggested that his partner get tested. Come November, the partner ended their sexual relationship. Three months later, in February 2011, he became severely ill, and subsequently learned that he was HIV positive. It wasn’t until two months after that that Williams got in touch, and admitted that he had lied about his HIV status. Williams wrote, “i want to start by saying that i sincerely apologize for giving you hiv.” And, “i made my biggest mistake the night i said I didn't want to use a condom knowing my status but still being so deep in love with you that i wanted us to be one person ... I was selfish and i was more so concerned with my own false happiness than you health.” After reading that confession, Williams’s former partner went to the police.

Williams's act was profoundly thoughtless, but was it malicious, and should it be considered a crime? And if so, what kind of crime? These questions have been the subject of New York court proceedings for nearly four years. The Williams case is, in a sense, a final vestige of the scariest, most dangerous age of AIDS, when the disease carried a powerful stigma, and an infected body was seen as a dangerous weapon.  

Last week, the New York Court of Appeals, the state’s highest court, ruled that Williams should face a misdemeanor reckless endangerment charge, not the felony charge a grand jury had called for, because he did not show “depraved indifference to human life.” For the court, based on the physician’s testimony about current medical technology, HIV and AIDS do not present a “grave and unjustifiable risk of another person’s death.” The court wrote that, while the defendant’s conduct was “reckless, selfish and reprehensible,” there was no evidence that Williams “exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus,” or that Williams “was utterly indifferent to the victim's fate.”

But many LGBT-rights advocates think that even the misdemeanor charge is too much. Tom Duane, the first openly gay, and openly HIV positive, member of the New York State Senate, believes that some of the stigma he encountered in Albany remains. Duane, who is now retired, remembers days in the state legislature characterized by intense worry that corrections officers, police officers, and firefighters could get HIV from someone who was incarcerated; he compared it to the fear that anyone playing on the court with Magic Johnson might get infected. Other sexually transmitted viruses, Duane said, like herpes or HPV, also pose grave risks, like infertility or cancer. And yet the worry is far, far greater over transmission of HIV—disproportionate to what it should be, Duane told me, considering the state of advanced medicine. “The vast majority of couples are not intentionally infecting each other with herpes or HPV or chlamydia, gonorrhea or syphilis,” Duane pointed out—so why single out HIV?

In the U.S., over 35 states have laws that specifically criminalize exposing another person to HIV, sometimes even if the virus is not transmitted. Some laws against HIV exposure criminalize acts that can’t even transmit HIV, like scratching or spitting—these rules particularly reflect outdated notions of danger. In 2008, a homeless man in Dallas with HIV was sentenced to 35 years in prison for allegedly spitting at a police office, because his saliva was considered a deadly weapon. In Nebraska, ProPublica reported in 2013, spitting on a cop is a misdemeanor, but if the offender is HIV-positive, then it’s a felony. Similarly, there are states where criminal penalties are enhanced for sex workers who are HIV positive, and enhanced even further when the number of sexual encounters or partners is high.

New York is not such a state: there is no statute that specifically makes it a crime to infect someone with HIV. This is part of why Iván Espinoza-Madrigal, the legal director of the Center for HIV Law & Policy, “weighed in to advocate for the reduction in the charge”; he believes that Williams’s case is “poised to create precedent for all New Yorkers.” Espinoza-Madrigal’s center, which is based in New York, filed an amicus brief on behalf of a number of local and national public health, medical, and community organizations. Yet while Espinoza-Madrigal welcomed the court’s move away from the felony charge, he emphasized that the case will now only go back to trial: that even this lower charge could mean a criminal prosecution. Espinoza-Madrigal believes that this is unwarranted. “There is no legal requirement, under New York State or federal law, to disclose one’s HIV status before engaging in sexual activity,” he told me, nor is there a legal requirement for laypeople to get tested.

But in the New York courts, it is a matter of the risk one knowingly person poses to another.  In Williams’s case, one appellate court judge dissented from the majority opinion, writing that he would reinstate the count of first-degree reckless endangerment. In Judge Eugene Pigott’s eyes, Williams's behavior—taking a condom away from his partner, telling him it would be safe to engage in unprotected sex—“established at the very least that defendant acted with ‘wanton cruelty, brutality, or callousness’ and ‘utter indifference’ to the victim's fate.” Judge Pigott said, “The grand jury plainly believed that there was reasonable cause to believe that a crime had been committed," and it “apparently believed that [the] defendant ‘did not care at all’” about the victim’s health. In a footnote, he added that “the medical testimony proffered by the People's expert, viewed in the light most favorable to the People, was legally sufficient to establish the ‘grave and unjustifiable risk of death’ element.”

Bill Fitzpatrick, the president-elect of the National District Attorneys Association—who also happens to be District Attorney for Onondaga County, the office that brought charges against Williams—roots his own criticism in Judge Pigott’s dissent. Speaking by phone, he stressed the jury’s views on Williams’s state of mind: In Fitzpatrick’s summation, “He knew he was HIV positive, and went forward without any warning and without any protection, and we felt that was not only reckless, but depraved.” For District Attorney Fitzpatrick, it’s about the exposure to deadly disease: A person who knowingly, intentionally, puts another at risk of HIV should face legal responsibility, criminal consequences.

Duane’s view is basically the diametric opposite. He believes, he told me, that a person must be held responsible for decisions made over what penetrates or infuses his or her own body. Duane joked that conservatives ought to like him more because of his approach to intercourse. “I have spoken to many school groups of teenagers,” he said, “and told them, if your partner doesn’t want to use a condom, well you shouldn’t have sex with them, because they don’t love you.”

Espinoza-Madrigal emphasizes the broader issue of public policy, questioning the logic in the current approach. “We are criminalizing people for coming forward to get tested,” he told me. People v. Williams—the name of the case is telling—“involves a young African American gay man–a demographic that public health officials are trying to monitor more closely.” Because testing is voluntary, he said, it doesn’t make sense to “hold people criminally liable when they don’t disclose their HIV status.”

This attitude, he said, “creates a serious disincentive for people to come forward for testing and treatment. It really creates a chilling effect.”